Calcutta High Court
Ballarpur Industries Ltd. & Ors vs The Board Of Trustees For The Port Of ... on 22 February, 2016
Author: I. P. Mukerji
Bench: I. P. Mukerji
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WP NO.169 OF 2016
BALLARPUR INDUSTRIES LTD. & ORS.
Versus
THE BOARD OF TRUSTEES FOR THE PORT OF KOLKATA & ORS.
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WP NO.170 OF 2016 RAMESH KUMAR & COMPANY PVT. LTD. & ANR.
Versus THE BOARD OF TRUSTEES FOR THE PORT OF KOLKATA & ORS.
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BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI Date : 22nd February, 2016.
Mr. A. Chowdhury, senior advocate, Mr. A. Chatterjee, Mr. S. Ghosh, Mr. R. Das, Mr. L.R. Mondal...appear.
Mr. A. Mitra, senior advocate, Mr. S. Bhattacharya, Mr. L. Vishal Kumar, Mr. R. Upadhyay, Ms. S. Chatterjee, Mr. S. Basak...appear.
Mr. K. Dutta, senior advocate, Mr. S. Bose...appear.
The Court : The writ petitioner in WP No.169 [Ballarpur Industries Ltd.] has an establishment on 5, Hide Road, Kolkata. It was under a lease from Kolkata Port Trust. Admittedly, the writ petitioner in the other writ application, WP No.170 of 2016 [Ramesh Kumar & Company Pvt. Ltd. & Anr.] is doing business in that premises under Ballarpur. It is said that there are 200 employees working there. The monthly rent payable by Ballarpur to Kolkata Port Trust under the lease was Rs.4.5 lacs per month. There has been, without dispute, substantial default on their part to pay the rent. The total sum claimed by Kolkata Port Trust on this account from them is about Rs.4.12 crores out of which the rent component is about Rs.3.30 crores. The rest is interest.
As long ago as on 11th October, 2004, a notice under section 4 of the Public Premises [Eviction of Unauthorised Occupants] Act, 1971 was issued by Kolkata Port Trust against Ballarpur. The proceeding before the Estate Officer continued for nearly 10 years. On 26th February, 2013 he passed an eviction order. On 20th March, 2013 an appeal together with the stay application was preferred by Ballarpur before 2 Appellate authority, the learned District Judge, Alipore. At the time of admission of the appeal, it is stated that no stay was granted. The appeal and the stay application are still pending.
Meanwhile, very recently, in execution of the order dated 26th February, 2013 passed by the Estate Officer, Kolkata Port Trust has taken possession of the establishment by physically dispossessing the writ petitioners. They have sealed the establishment.
Mr. Ahin Chowdhury, learned senior advocate appearing for Ballarpur submits that the issue between his client and Kolkata Port Trust is only with regard to the non-payment of rent. His client is ready and willing to pay a substantial amount out of the outstanding to Kolkata Port Trust immediately and to pay off the balance in instalments if their occupation was legitimised by Kolkata Port Trust by renewal of the lease or otherwise. He says that the eviction order was passed in February, 2013. The appeal and the stay application are pending from March, 2013. No execution was levied. This sudden levy of execution has taken his client by surprise. It is not a very reasonable and fair act on the part of the respondent Kolkata Port Trust.
Mr. Abhrajit Mitra, learned senior advocate appearing for Ramesh Kumar & Company Pvt. Ltd. & Anr. submits a more technical point. He says that Ramesh Kumar & Company have in possession of the premises. Therefore, under section 4[2][b] this organisation also should have been duly noticed before execution was levied. Hence, the execution was bad in law.
Mr. Dutta, learned senior advocate for Kolkata Port Trust, at the very outset, showed me some documents from page 34 of the writ petition of Ramesh Kumar & Company. The Importer and Exporter Certificate issued to one of the directors of this company was only executed in 2015. Page 35 of the petition according to learned counsel shows that the existence of Ramesh Kumar & Co. on the premises was not before 2015. He submits that when the section 4 notice was served on 11th October, 2004, Ramesh Kumar was no where on the site.
He took me extensively through the records to show the order of the Estate Officer, the notices, etc. and apprised me in detail about the facts of this case, especially, the huge default in payment of rent by Ballarpur.
Now, the prima facie case, the balance of convenience and inconvenience and all other matters have to be considered to pass a just and convenient order. 3
The following facts are very important. There were 200 employees on the site on the date of dispossession. In one all of sudden blow these 200 employees have been thrown out of employment.
The eviction order was passed on 26th February, 2013. Mr. Dutta submitted that when the appeal and stay application was moved on 20th March, 2013 the appellate Authority, being the learned District Judge refused stay. Kolkata Port Trust could have started execution proceedings straightaway.
They waited about 10 years to do so.
As held by the Estate Officer, the charge of subletting against Ramesh Kumar & Company could not be proved. The only ground on which the petitioners have been evicted is non-payment of rent.
It was not shown to me, whether upon satisfaction of the learned District Judge hearing the appeal, that the petitioner Ballarpur was ready and willing to clear the outstanding rent, the appellate Court could exercise its discretion to restore possession to them. It may or may not be within its province.
But, I am of the firm belief that at this point of time the appeal and stay application should be disposed of by the learned District Judge before execution is finally levied. The writ petitioner Ballarpur has to show its bona fide too. A very large sum of money is due and owing by them to Kolkata Port Trust on account of outstanding rent.
Therefore, I direct them to deposit Rs.1 crore with Kolkata Port Trust immediately by 29th February, 2016. Kolkata Port Trust will continue to be in custody of the establishment at 5, Hide Road, Kolkata. Upon deposit of this Rs.1 crore, Kolkata Port Trust will allow within 3 working days of receiving the deposit, the writ petitioners to carry on business under the Joint Special Officers appointed by the earlier order of this court till the appeal and stay application are disposed of by the Appellate authority. No amount should be withdrawn from the bank accounts of the company, save in the usual course of business unless and until the balance claimed by Kolkata Port Trust of Rs.3.12 crores [Rs.4.12 - Rs.1 crore paid under this order] is secured in the accounts of the petitioners. The Special Officers will ensure this. For the period they are functional each of the Special Officers will be paid 800 GMs. per month by the petitioners.
The Appellate Authority will dispose of the stay application and appeal within three months from the date of communication of this order, preferably. The execution 4 of the Estate Officer's order will abide by the result of the appeal so determined by the learned District Judge. The order of the learned District Judge will supersede this order.
The two writ applications are, accordingly, disposed of. All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(I. P. MUKERJI, J.) Pkd. A.R.[C.R.]